The Rule of Law Undermined

Today the Jobseekers (Back to Work Schemes) Bill is due its second reading in the House of Commons as the government attempts to fast track the legislation. It’s a small Bill comprising only two sections spread across six pages. The purpose of the Bill is to remedy the legal shortcomings of the 2011 Regulations requiring jobseekers to attend mandatory ‘work placements’ or face losing various jobseekers and welfare benefits.

The legality of these ‘work placements’ was judicially reviewed in Reilly and Wilson v Secretary of State for Work and Pensions in which the Court of Appeal found them to be unlawful and issued a quashing order.

The present Bill will effectively reinstate the 2011 Regulations albeit in a legal framework and essentially override the Court’s ruling.  Regardless of the merits, what is concerning is the retrospective effect of the Bill. The government is pushing for retrospective effect to avoid having to back pay an estimated £130 million to jobseekers that were penalised for not attending the mandatory ‘work placements’ under the previous unlawful Regulations.

In a Parliamentary briefing, the government justified it in its own words:

13. The Department will be seeking permission to appeal the Court of Appeal’s judgment. If permission to appeal to the Supreme Court is not granted, or the Supreme Court finds against the Department, primary legislation would be needed to ensure that the Government does not have to make repayments to (and can impose sanctions where decisions have been stayed, on) all claimants who failed to take part in programmes comprised in the ESE Regulations. Fast-tracking the Bill is necessary in order to provide certainty and thus safeguard the Government’s position.

14. It is the Department’s view that emergency primary legislation is necessary. As soon as the litigation ends the Government would incur the above mentioned liability. The only way to ensure that the Department does not have to make any sanction repayments and can impose sanctions where decisions have been stockpiled, is to press ahead with emergency legislation.

(You can find the full briefing here

Retrospective legislation is not a new phenomenon. In 1965 Parliament passed the War Damage Act, the retrospective provisions of which allowed the government to avoid having to pay compensation for damage caused during the Second World War. The policy reasons behind this were justifiable to a certain extent as the British government could otherwise be liable for all manner of damage caused during war.

The policy reasons behind the current Bill are less so and arguably penalise one of the already most vulnerable groups in the country. It is inevitably the taxpayer that would have to foot the bill for the outstanding benefit payments but is that not a price worth paying in a civilised society that seeks to protect its vulnerable? Instead the government has taken the view that avoiding the embarrassment of its own maladministration of policy is more worthwhile.

What is even more concerning though, is the government’s deliberate flouting of the rule of law. Law becomes worthless when it loses its certainty and an independent judiciary holding a government to account becomes impotent. Retrospective legislation, particularly on such weak policy grounds is a dangerous precedent being set by the government as it seeks to put itself beyond the reach of law. It is guilty of betraying justice and the trust of its electors; crimes which are all too easily forgotten when held to account at the polls.

The Jobseekers (Back to Work Schemes) Bill 2013 can be found here

And the Court of Appeal’s decision in Reilly and Wilson v Secretary of State for Work and Pensions [2013] EWCA Civ 66, here

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2 thoughts on “The Rule of Law Undermined

  1. Jamie Lacon says:

    As I recollect, the judgement flowed ultimately from the fact that the regulations failed to accord with the overriding principles set out in the governing Acts of Parliament. Possibly shoe-horning new regulations may not remedy that illegality and they may still fall in the event of further challenge.

  2. leakylaw says:

    That is a possibility although I think given the wording of the Bill, strictly speaking, the illegality insofar as the principles of the original governing Acts are concerned will cease to exist.

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